Trevino v. Ortega

ployee Brennan, Hospital. of the physician employed by hospital was S.W.2d 820. treating her. Based on this record we must if Sampson produced determine sufficient summary judgment As BMHS summary judgment genu- evidence to raise a Potyka, offered the affidavit of Dr. an emer- ine issue of material fact on each element of gency physician, room which established that agency, thereby ostensible defeating BMHS’s emergency room doctors are not the summary judgment motion. agents, servants, employees actual or of the Hospital, subject supervi- and are not if Sampson’s Even belief that Dr. Zakula sion, direction, management, or hospital employee reasonable, control of was a were Hospital patients. belief, when treating seen, Dr. as we have must be based Potyka further generated by stated that when on or Dr. Zakula part some conduct on the Sampson, signs posted Hospital. treated were in the “No one should be denied emergency notifying patients right up room to set the truth unless it is in emergency physicians plain room indepen- were contradiction of his former allegations Penn, Potyka’s dent contractors. Dr. acts.” Gulbenkian v. 151 Tex. affidavit also Hospital established that summary not did collect judgment proof any Hospital fees for establishes that emergency physician room ser- took no affirmative act to vices and that the make actual or physicians pa- billed the prospective patients emergency think the directly. presented tients copies BMHS physicians agents room signed employ- were its summary consent forms as additional ees, and did not fail to take reasonable ef- judgment During Samp- evidence. both of forts to disabuse them of such a notion. As a room, Hospital emergency son’s visits to the law, record, matter of by this no conduct treated, being before Sampson examined or Hospital would patient lead reasonable signed Diagnosis, a “Consent for Treatment treating believe that the emergency room Hospital and Care” form explaining that all physicians hospital employees. were physicians Hospital at the contractors profes- who exercise their own Sampson has failed to raise a fact issue on judgment sional without control the Hos- at least one essential element of her claim. pital. The part: consent forms read in Accordingly, judgment we reverse the of the

I acknowledge ..., agree and appeals South- court of and render Baptist Hospital, Sampson east ... any Hospi- nothing. and take operated part tal Baptist as a Memorial

Hospital System, responsible is not for the

judgment or any physician conduct of who provides professional

treats or service to me, physician but rather each is an inde- pendent self-employed contractor who is Jorge TREVINO, M.D., individually H. agent, and employee servant or Maternity and McAllen d/b/a hospital. Clinic, Petitioner, To establish her claim of agency, ostensible Sampson offered her own affidavits. In her affidavit, original ORTEGA, individually although she stated that Genaro Ortega, Hospital sign directed her to several of Linda a/n/f pieces paper examined, minor, Respondent. before was she she did not read explained them and no one then- No. 97-0280. supplemental contents to her. Her affidavit Supreme Court Texas. stated that she did not recall signing the not, documents any she did time Argued Dec. 1997. room, during emergency her visit to Decided June 1998. any signs stating that the doctors who work Rehearing July Overruled emergency in the employees room are not Hospital. Both affidavits state that she did not choose which doctor would treat her that, times, at all she that a believed Therefore, the court of we reverse

of action. judgment that appeals’ judgment and render nothing. Ortega take Ortega, individually and Genaro Ortega, daughter, his Linda as next Mend of Jorge Trevio Drs. Michael Aleman and sued Maternity for medical and McAllen Clinic Ortega alleged that the defen- malpractice. providing negligent care dants were during in 1974.2 treatment Linda’s birth records Discovering that Linda’s medical destroyed, Ortega from the birth had been separate in a suit for then sued Dr. Trevio intentionally, recklessly, de- stroying Ortega’s medical records Linda from the birth. appeal from this latter action that

It is the Here, Ortega claims that Tre- is before us. vio Linda’s medical had destroying the records ma- records and terially Ortega’s ability interferes with prepare malpractice Ortega suit. his medical Aleman, explains attending physi- cian, specific recollec- testified he has and, therefore, delivery miss- tion of the Faust, Nye, Corpus Thomas F. Diana L. only way ing medical records are the Christi, Faust, Dallas, Diana L. Linda C. procedures used to deliver determine Breck, Christi, Corpus Cooper, R. Brent Dal- Because the medical records are Linda. las, for Petitoner. expert an missing, Ortega’s cannot render Poole, Ricky Jackson, Jr., J. Randall C. Aleman’s, Clinic’s, opinion about or Tre- Antonio, Respondent. San negligence. vio’s suit, Responding Ortega’s spoliation ENOCH, Justice, opinion delivered the specially excepted Trevio and asserted that Court, PHILLIPS, in which Chief Ortega to state a cause of action. The failed Justice, GONZALEZ, HECHT, special excep- Trevio’s court sustained SPECTOR, OWEN, ABBOTT and gave Ortega opportunity tion an HANKINSON, Justices, join. Ortega But declined to amend and amend. The issue in this ease is whether this Court Ortega the trial court the case. dismissed recognize independent an cause of appeals appealed. The court of reversed the negligent spoliation action for intentional or trial court’s dismissal order and held that by parties litigation.1 of evidence recognizes independent Texas an cause appeals recognizes court of held that Texas spoliation. action for 938 S.W.2d at cause of action for evidence 223. Because we determine that spoliation give cautiously when does not rise to This Court treads decid- damages, recognize a and because it is better remedied whether to new tort. See Hosp., by spoliation, generally within Kramer v. Lewisville Mem’l the lawsuit affected we (Tex.1993); recognize decline to as a tort cause 858 S.W.2d Graff submission, this case was still 1. Whether we a cause of action for 2. At time of by persons of evidence who are not pending in district court. underlying lawsuit is not before the Court, and therefore we do consider it. (1989) (no Beard, (Tex.1993); App. 445 N.W.2d 858 S.W.2d (Tex. Kerr, case); Boyles of action under facts of Brown 855 S.W.2d cause 1993). (Mo.1993) Hamid, adjust must to meet While law (existence needs, society’s changing adequate ap- we must balance remedies and not case).3 adjustment against propriate boundless claims in on facts of already judicial system. crowded We concept. Evidence is not a new especially creating averse to a tort years struggled For courts have with the only duplicative litigation, would lead to en problem possible and devised solutions. couraging relitigation inefficient of issues Probably enduring the earliest and most so- better handled within the context of the core spoliation lution was the inference or omnia recog cause of action. We thus decline to things all praesumuntur spoliatorem: contra spoliation independent nize evidence as an See, presumed against wrongdoer. e.g. a tort. Arundel, 109, Rep. Eng. 1 80 258 Rex v. Hob. jurisdictions A number of that have consid- (K.B.1617) spoliation (applying infer- recog- ered the issue have hesitant to been (2 Wheat.) Pizarra, 227, ence); 4 15 U.S. independent nize an tort for evidence (1817) apply spoli- (declining to L.Ed. 226 See, for a of tion different reasons. Brown, inference); S.W.2d at 56 ation 856 765, e.g., Corp., v. 921 Wilson Beloit 767 recognized spolia- a (noting that Missouri (8th Cir.1990) (no spoliation tort Ar under century). other tion for over a inference law); kansas Edwards v. Louisville Ladder words, original law- within the context of Co., (W.D.La.1992) (ex 966, 796 970 suit, guilt from the deduces factfinder remedies); adequate istence of v. Christian incriminating evi- presumably destruction of Co., 408, Kenneth Chandler Constr. 658 So.2d dence. (Ala.1995) (no 412-13 cause of action under problem response to the of This traditional noting previous facts of ease allow- but cases spoliation properly frames the al- ing jury spoliation pre- on instruction concept, a evidentiary leged wrong as an Court, sumption); Superior Raia La v. 150 Spoliation causes separate cause of action. (1986) (existence 118, 286, Ariz. 722 P.2d 289 injury the cause ac- independent from remedies); adequate Blach Gardner v. If, ordinary in the tion in it arises. which ston, 754, 545, Ga.App. 185 365 S.E.2d 546 destroys affairs, his or an individual course of (1988) (no law); Georgia tort under no inde- objects, there is papers her own Co., 188, Boyd v. Travelers Ins. 166 Ill.2d 209 parties. The de- pendent injury to third (1995) (tra- 727, 267, Ill.Dec. 652 270 N.E.2d when some- only relevant struction becomes negligence sufficiently ditional remedies ad destroyed items are one that those believes dress the issue and remove the need to cre in a success law- instrumental to his or her action); independent Murphy ate an cause of suit. (Ind. Prods., 687, Target v. 580 N.E.2d 690 (no recognized an Ct.App.1991) duty for em Even those courts that have common-law damages ployer preserve potential for em tort note benefit); Reed, Superior v. ployee’s speculative. Monsanto Co. v. 950 are Smith (existence 829, Court, 491, 198 811, Cal.Rptr. (Ky.1997) Cal.App.3d 151 ade remedies); (1984); Printing Montgomery v. Petrik v. Monarch quate Miller 774, 202, 761, 248, 103 Ill.Dec. County, Md.App. Corp., Ill.App.3d 494 A.2d 767- (1985) (existence remedies); 1312, The reason adequate 501 N.E.2d inquiry difficult is be- damages 179 Mich. Panich v. Iron Wood Prods. 829, (intentional); (1984) v. twenty Bondu Gur have consid 832-33 3. Courts in more than states issue, only vich, 1307, (Fla.Dist.Ct.App. six states ered the but 473 So.2d recognized negligent Works, a cause of action for 1984) Stanley (negligent); v. Callahan or intentional v. Munici Hazen 1014, (1997) 488, N.J.Super. A.2d (Alaska pality Anchorage, 718 P.2d Inc., Potash, Eddy (negligent); v. Coleman (intentional); 1986) Bldg. Velasco Commercial (1995) (intentional); N.M. 905 P.2d Co., Cal.App.3d 215 Cal. Maintenance Rptr. St.3d 67 Ohio Smith Howard Johnson (1985) Supe (negligent); Smith v. (intentional). (1993) 615 N.E.2d 1037 Court, Cal.Rptr. Cal.App.3d rior procedures for evidence spoliation tips cause evidence the balance tions and lawsuit; jurisprudence. under Texas damages it does not create amena- are available to take monetary compensation. judges Trial have broad discretion ble to jury ranging measures from a instruction recognize spoliation as an Our refusal to, spoliation presumption in the most by tort is buttressed an analo- case, egregious penalty sanctions. death gous refusing cases line of See, e.g., v. Brazos Elec. Power Watson separate perjury cause of action for or em- (Tex.App. Coop., 918 S.W.2d per- bracery.4 spoliation, Like evidence civil denied) (holding that —Waco writ jury improper embracery and civil involve give spoliation court erred when it failed or a witness within the conduct instruction); Elevator Ramirez Otis underlying A number context of lawsuit. (Tex.App. — Dallas considering of courts the issue have refused denied) (noting pos that a trial court writ wronged party bring sepa- to allow the awarding discovery in sesses wide discretion perjury rate action cause of for either 215(b). sanctions); also Tex.R. P. Civ. embracery. e.g., Cooper v. Parker-Hu any discovery evidentiary As with abuse or (Okla.1995) 1096, ghey, 894 P.2d 1100 n. 3 issue, remedy appro there is no one that is (listing jurisdictions a number of that refuse priate spoliation; every for incidence of separate to civil of cause action respond appropriately based court must Howell, perjury); Holdings, for OMI Inc. v. upon particular facts of each individual (1996) 260 Kan. 918 P.2d case. Heilman, (embracery); Trudell v. 158 Cal. (1984) App.3d Cal.Rptr. Ortega argues also the failure to (embracery plaintiff disallowed has unless no maintain Linda’s medical records violated a redress); Silbert, other means of Hoston v. statutory duty to maintain such records as (D.D.C.1981) (embra 241.103(b) required by of the Texas section cery), grounds, rev’d on other 681 F.2d 876 Safety Assuming Health and Code. without (D.C.Cir.1982). rely These decisions deciding that such a exists and public policy ensuring concerns such as duty, not there was a breach of that it does finality judgments, avoiding duplicative necessarily independent that an cause follow litigation, recognizing difficulty in of action arises. Nor does a cause of action calculating damages. Townsley, Kessler necessarily party’s obligation from a to arise (1938) (res ju 132 Fla. 182 So. comply discovery. with the rules of As we dicata); OMI, (dupli 918 P.2d at above, obligations destroy not indicated to litigation speculative damages). cative particular evidence arise the context Similarly, recognizing a cause of action for lawsuits; consequently, spoliation is best imper evidence would create an itself, remedied within the lawsuit not as a layering liability missible and would allow separate tort. plaintiff collaterally attack an unfavora judgment with a different factfinder at a time, opposition later in direct to the sound appeals’ judgment We reverse the court of policy ensuring finality judgments. Ortega and render take noth- ing. that, Ortega’s spo- We share concern when occurs,

liation there adequate must be mea- BAKER, Justice, concurring. improperly sures to ensure that it does not impair litigant’s rights, disagree is whether Texas but we The issue this case recognizes that the creation of an tort is a cause of action for evidence simpler, practical, spoliation. today warranted. It is more The Court holds that Tex- logical rectify any improper agree more I with conclu- conduct as does not. the Court’s separate within the context of the lawsuit in which it is sion that a cause of action is Indeed, remedies, However, separately evolving relevant. sanc- I write warranted. 1990). Embracery attempting ed. Dictionary "[t]he is crime of other.” Black’s Law jury corruptly influence a to one side or the destroying existing spoliator for relevant evidence. Ortega’s claim that consider are inade- Second, remedies they spoliators. deter future quate protect litigants faced with evidence Corp. v. Forest Hills Nation-Wide Check destruction. (1st Cir.1982). Distribs.,

Available remedies within the context third, perhaps importantly, they And most for reme- litigation can be effective methods evidentiary function. See Sacramo serve resulting spo- dying prejudice from evidence Bridgestone/Firestone, na However, Texas courts have been liation. (1st Cir.1997). spoli When apply hesitant remedies parties, prejudices nonspoliating ation problem spoliation is a serious Evidence presumption levy a sanction or submit a can devastating can have a effect on the adminis- evidentiary playing that levels the field and I justice. Accordingly, tration of believe it nonspoliating party. See compensates the appropriate what remedies are to review Lines, 142 F.R.D. Turner v. Hudson Transit protect courts to available to Texas trial (S.D.N.Y.1991); Bachmeier Wall nonspoliating litigants and when the reme- (N.D. Ctrs., 527, 533 work Truck 507 N.W.2d applied. dies should be 1993). I. ORTEGA’S CONTENTIONS that another "When believes Ortega argues that a cause of action for evidence, may improperly destroyed necessary protect request for sanctions or either move existing against evidence destruction because point, presumption instruction. At this tion inadequate. Initially, Ortega remedies are the trial court should determine whether spolia- against remedies asserts Texas’s only protect against justified. intentional destruc- presumption tion or a are sanctions there is tion. he claims that unless for the trial court. question This is a of law intent, party evidence of a will be left without Stout, 787-88 See Miller v. remedy. a writ) (Tex.App. Antonio — San Ortega also claims that courts have failed (“Only ultimate issues of fact are to be sub- of remedies that are to use wide jury.... proceedings as to a Such mitted in He contends that available other states. involving of motions for those determination only spoliation presumption is the reme- respond of failure to to sanctions because applied dy Texas courts have and that discovery requests ... often involve resolu- Moreover, simply insufficient. he asserts fact.”); Mas [by judge] questions a tion presumption’s that courts are unclear on (Tex. Hutcheson, 270 S.W. sie one, effect, in this courts and cases such as approved) (stating Com.App.1925, holding plaintiffs summary not allow to survive intentional- determining whether reap the benefits of the and preliminary ques- ly destroyed evidence is a presumption. tion decide); also Battoc to tion for the court Lastly, Ortega that Texas has no asserts Ctr., A.2d Washington Hosp. chi remedy prelitigation spoliation. to method that a trial (holding (D.C.Ct.App.1990) instances, many He states jury to submit a has the discretion court sanctioning parties preliti- refrain from spoliator’s reviews the instruction after it pro- gation because our rules of civil conduct fault, spoliated im evidence’s degree of only allow trial courts to sanction cedure availability proof); portance, of other and the pending discovery during abuse Co., 220 Ga. Chapman Owners Ins. P. 215. v. Auto litigation. See Tex.R. Crv. (1996) (stating that App. 469 S.E.2d II. RESPONSE TO ORTEGA’S testimony, the to exclude deciding whether CONTENTIONS spoliator’s trial court should determine Remedy Spoliation

A. When to caused culpability prejudice and evidence). legal inquiry This of Evidence (1) was there considering: whether involves of evidence Remedies for (2) evidence; First, duty preserve whether they punish the purposes. serve three alleged spoliator consequences, either or inten- these duties are rendered (3) tionally spoliated evidence; meaningless. whether spoliation prejudiced nonspoliator’s jurisdictions Other have held that there is ability present its ease or defense. preserve duty also a common law evi-

dence. These courts have held that a Duty documents, items, preserve tangible must litiga- that are “relevant to information Upon spoliation complaint, the threshold tion, reasonably potential litigation, question alleged spoli- should be whether the discovery to lead to the of admissi- calculated any obligation preserve ator was under Thompson T. Co. v. evidence....” Wm. party may statutory, evidence. A have a Corp., General Nutrition regulatory, duty preserve or ethical evi- (C.D.Cal.1984); see also Dillon v. Nis DeLaughter County dence. See v. Lawrence (8th san Motor Cir. (Miss.1992) Hosp., 601 So.2d 821-22 1993); Unigard Eng’g Ins. v. Lakewood (finding duty preserve under (9th 363, 365, Mfg. Corp., & 367-69 required hospitals statute that to maintain States, Cir.1992); Welsh United records). certain medical example, For 1239, 1241-42, Cir.1988); Tur Safety requires Texas Health and Code hos- ner, 72; Capellupo 142 F.R.D. at v. FMC pitals patient’s to maintain medical records (D.Minn.1989); Corp., 126 F.R.D. period for a certain of time. Tex. Fire Ins. Exch. v. Zenith Radio Safety § 241.103. The stat- Health & Code Nev. 747 P.2d Nota- clearly ute creates a duty to maintain rec- bly, aspects duty there are two of this DeLaughter, ords. 601 So.2d at 821-22 Cf. (1) evidence: when the arises 41-9-63, (construing §§ Miss.Code Ann. (2) what documents or items a -69). Similarly, regulations require federal preserve. must hospitals certain to retain medical records for part duty inquiry The first involves years. § at least five C.F.R. 482.24 preserve determining duty when the to evi- (1998). regulations These can also create a question dence arises. there is no that While duty to maintain records. See also Hicks v. party’s duty preserve a to relevant evidence Co., Gates Rubber during pending litigation, arises courts have (10th Cir.1987) (holding that 29 C.F.R. duty been less clear about whether a exists § 1602.14 duty preserve creates a to evi- A See Tex.R. Civ. P. 215. prelitigation. dence); Shipyards, EEOC Jacksonville number of courts the need for a Inc., (M.D.Fla.1988) F.Supp. 690 998 duty preserve prelitigation. to (same). Finally, section 7.05 of the Code of Int’l, Inc., e.g., Blinzler v. 81 Marriott F.3d provides Medical example Ethics of a (1st Dillon, Cir.1996); potential duty ethical to retain certain docu- Welsh, 1241-42, 267; at at F.2d ments. Section 7.05 physicians states that 551; Capellupo, 126 F.R.D. at Fire obligation patient have “an to retain records Exch., agree I Ins. 747 P.2d at 914. with may reasonably pa- which be of value to a A party able to these courts. be cases, tient- all medical records discovery process subvert the and the fair kept should be long at least as as the justice by destroy- simply administration of length of time of the statute of limitations for actually a evidence before claim is filed. malpractice medical claims.” See Council Exch., See Fire Ins. 747 P.2d at 913. AffaiRS, & Ethics Judicial American point § Ass’n, Ethics, question 7.05 The next then is at what Med. Code of Medical circumstances, during prelitigation duty In certain a court arise. does the duty' imposed prelitigation duty could find that this ethical rises to the that have a Courts legal duty preserve preserve level of a to records. to evidence have held that once a party statutory, regulato- potential if a party litigation violates a is on “notice” of evidence, ry, duty preserve or ethical evidence exists. See Glover party may subject Corp., be to either sanctions or a BIC Cir. 1992); presumption. potential Microsurgical, Without McGuire v. Acufex Inc., (D.Mass.1997); litigation potential party 175 F.R.D. for a to antici- Servs., Instead, Health v. IBM pate litigation. recognized ABC Home Inc. we Turner, (S.D.Ga.1994); 158 F.R.D. party may “common sense dictates that 72-73; Computer 142 F.R.D. at Assocs. anticipate reasonably being ... be- suit filed Int'l Fundware, Inc. v. American 133 F.R.D. plaintiff to sue.” fore the manifests an intent (D.Colo.1990); Capellupo, 126 F.R.D. at Tank, (emphasis National S.W.2d at Thompson F.Supp. T. Wm. added). Consequently, held that the Court Exch., Fire Ins. 747 P.2d party reasonably when a antici- to determine Bicycle Burns v. Cannondale 876 P.2d must pates litigation, or foresees trial courts (Utah Ct.App.1994). Most totality look at of the circumstances concept not elaborated of notice. on the person decide whether reasonable But, a few courts that a have determined position anticipated litiga- party’s would have potential litigation is on notice of when party actually antic- tion and whether did litigation reasonably foreseeable. Tank, ipate litigation. See National Blinzler, (stating at 207. defendant was aware of circumstances National workable Tanktest is likely give litigation were rise to future context; yet, modified it must be con- and that reasonable fact finder could party destroys somewhat. When clude that the was on notice that defendant seeking protection is not of a likely litigation); evidence was relevant privilege as in In National National Tank. States, Rice v. United party asserting investigative Tankthe (D.D.C.1996) (finding that the defendant was privilege prove had the burden to potential litigation on notice of because it was anticipated subjectively litigation and that its likely to aware of circumstances that were hand, in was reasonable. the other belief On give litigation); rise to future v.White Office eases, nonspoliating party Defender, the Public 170 F.R.D. of (D.Md.1997) prove spoliating bears the burden that the (“[P]arties have been deemed spoli- party anticipated litigation. Because a litiga- know that documents are relevant party may subject sting of a ating be reasonably it is that a tion when foreseeable sanction, impossi- in most be instances it will ensue....”); lawsuit will v. RWP Shaffer nonspoliating to show (E.D.N.Y. Group, F.R.D. spoliating party subjectively anticipated liti- 1996) (stating appropriate that sanctions are spoliating gation. highly unlikely It is that a the defendant should have when “knew or readily subjectively admit that it will rele- destroyed known that the evidence was Accordingly, in anticipated litigation. imminent, pending, reasonably to or vant party to be on tion cases a should be found litigation”); foreseeable see also Jamie S. when, potential after view- litigation notice of al, et of Evidence GoReliok Destruction circumstances, totality ing the of the 1.22, (1989); Flanary, §§ 3.1 Donald H. Jr. & actually anticipated litigation or party either Flowers, Bruce M. Evidence: Spoliation of position person party’s in the a reasonable Response, a Rule 60 Def. Let’s Have in anticipated litigation. While would have 553, (1993); Nolte, J. 555-56 Steffen Couns. party may not rea- certain circumstances a Spoliation Approach Tort: An to Un- litigation party is sonably foresee until the Mary’s 351, derlying Principles, L.J. 26 St. in- actually opposing party’s notified (1995). 371-72 suit, may be times when tent to file there issue in This Court has dealt with a similar party put a certain facts will Brotherton, Tank Co. v. National potential litigation. Wheth- notice of (Tex.1993). In Tankthe 193 National Court actually party reasonably a or should er did “anticipation in the con- litigation” defined a fact anticipated litigation simply have is allowed to party text of whether should be by viewing issue for the court to decide investigative The Court privilege. assert an totality of the circumstances. party how to focused on determine when duty when a a trial court reasonably anticipates litigation. foresees Once determines or arises, court should preserve notice Importantly, require we did not actual to

957 (7th Sacramona, Cir.1997); part duty then look to the second 107 F.3d 447; Dillon, 267; inquiry party pre- evidence a must 106 F.3d at 986 F.2d at —what Ins., 2; party n. Unigard serve. A that is on notice of either 982 F.2d at 368 Patterson, potential pending litigation Pressey or obli- 898 F.2d (5th Cir.1990); Welsh, 1246-47, gation preserve to evidence that is 844 F.2d at relevant 1249; Turner, litigation. litigant “While a is under F.R.D. at Sweet Providence, duty keep every to P.2d retain document Sisters (Alaska 1995); possession its ... duty pre- it is under a Public Health Trust v. Val knows, cin, (Fla.1987); reasonably serve what it Hamann should 507 So.2d action, reasonably Ridge Mich.App. know is relevant in is Tool (1995); discovery DeLaughter, calculated lead to the admissi- N.W.2d evidence, 822; Bachmeier, reasonably likely to be re- 507 N.W.2d at 533. So.2d quested during discovery, subject is the [or] duty reasonably Because pending discovery of a sanction.” T.Wm. evidence, they preserve only logical it is Thompson, see also negli- should be held accountable for either Dillon, 267; Capellupo, 986 F.2d at spoliation. gent or intentional While allow- Exch., F.R.D. at Fire Ins. 747 P.2d at ing party a court to hold a accountable for Again, the focus is on whether a negligent as well as intentional particular piece is on notice that a of evi may appear punitive inconsistent with the dence is relevant. See Akiona v. United purpose spoliation, remedying clearly it is States, (9th Cir.1991). 158, 161 938 F.2d evidentiary sup- consistent with the rationale porting it because the remedies ameliorate

2. Breach prejudicial resulting effects from the una- Turner, vailability of evidence. If the trial court finds that a has a essence, places F.R.D. at 75-76. duty preserve it should then prejudicial upon burden of the effects decide whether duty. breached its culpable spoliating party rather than the in- Parties need not extraordinary take mea- Welsh, nonspoliating party. nocent evidence; however, preserve sures to Turner, F.R.D. at 75.1 preserving exercise reasonable care in evidence. See Hirsch v. General Motors spoliator A against can defend an assertion Corp., N.J.Super. 628 A.2d negligent or intentional destruction providing explanations other for the destruc example, tion. For if the destruction of the Some courts have allowed sanctions or the beyond spoliator’s evidence was control presumption only for intentional or bad faith business, ordinary or done in the course of Amtrak, See Bashir v. spoliator the court find did not (11th Cir.1997); Aramburu v. Boe duty Impor violate evidence. (10th Cir.1997); tantly though, party’s duty pre when a Bayliner Vodusek v. Marine serve arises before the Cir.1995); Spesco, Inc. v. Gen policy or when a is at with a odds eral Elec. Cir. records, policy maintain the will not excuse 1983); Harvester, Gumbs v. International obligation gen the evidence. See (3d Cir.1983); Vick v. Turner, erally 142 F.R.D. at 73. Comm’n, Employment Texas (5th Cir.1975); Langlet, State v. Prejudice Nonspoliator 3. (Iowa 1979); N.W.2d Brown v. Hamid, (Mo.1993). Though party may spo- improperly have However, parties evidence, other nonspoliating party may courts have held ac- the liated negligent remedy. key countable for either intentional or not be entitled to a One of the spoliation. Langley allowing See v. Union Elec. reasons remedies Furthermore, conduct, by punishing negligent applies equally negli- 1. intentional It conduct. spoliation. theory Turner, courts will deter future gent conduct. See 142 F.R.D. at 75 n. 3. merely deterring deterrence is not limited to prejudiced (Tex.App. is that the has the nons- Worth — Fort denied). Sacramona,

poliating party. See 106 F.3d at writ Dillon, 267; 446; Unigard 986 F.2d at Additionally, courts consider wheth should Ins., Chrysler Headley 982 F.2d at destroyed er the was cumulative of evidence (D.Mass. Corp., 141 Motor F.R.D. competent party other that a can evidence 1991); Turner, Valcin, 76-77; 142 F.R.D. at evidence, place in of the destroyed use and at 599. A to a So.2d is entitled destroyed supports key the whether evidence remedy only when hin evidence Battocchi, in the case. issues See 581 A.2d ability present its case or defense. ders its generally v. Milwaukee Schmid Dillon, Sweet, 986 F.2d at (3d Cir.1994) Corp., 13 Elec. Tool 895 P.2d at 491. cases, (noting design plaintiff in defect may only minimally prejudiced by be Courts should look factors to a Dillon, product); destruction actual deciding destroying in whether evidence (considering plaintiffs’ F.2d at 267-68 party. prejudiced importantly, courts Most nonspoliating party not claims was destroyed consider the rel- evidence’s prejudiced ample because there was evidence Flowers, evancy. supra, at Flanary & in available for the to use defend defendant destroyed 555. The more evi- relevant claim). ing against design Obvi defect dence, nonspoliating par- the more harm the ously, the more there is and the less evidence ty many will suffer from In its destruction. is, important prej the issue the less involved circumstances, however, may have dif- nonspoliating party will suffer. udice ficulty relevancy in determining because longer evidence is no available for the court Spoliation B. Sanctions give Accordingly, to review. courts should nonspoliating party’s asser- deference Authority to Sanction relevancy. tions about That the evidence police power Trial courts broad destroyed may of its was be some evidence litigants protect against evidence Welsh, relevancy. See F.2d at 1246 procedure rules of civil allow tion. Our (quoting Corp., 692 F.2d Nation-Wide Check courts to sanction whenever 218). Generally, when a has de- discovery process. See Tex.R. abuses the faith, stroyed intentionally evidence bad 215(3). Thus, destroys P. if a Civ. the evidence was harmful to the relevant and discovery pro- during relevant spoliating party’s ease. Absent evidence to cess, authority to the trial court has the contrary, the trial court could find rele- spoliating party. sanction the vancy solely based on this fact. See Nation ap see also In where Wide Check 692 F.2d at instances Rule (Supp. § al., supra, ply example, prelitigation 2.4A et Gorelick —for 1998). However, party neg- power if spoliating evidence —a trial court has inherent destroyed nonspo- Eichelberger v. Ei ligently remedy then the (Tex.1979), proof this liating party chelberger, should offer some about 582 S.W.2d 395 destroyed inherent what would show. held that trial courts have Court Turner, example, power will “aid judicial F.R.D. at 77. For to take action that destroyed, jurisdiction, in the admin if medical records are the exercise of its justice, preservation of nonspoliating party show what a in the could istration typical independence In Kutch integrity.” medical would contain. its record Cf. Sweet, appeals College, P.2d at could refined 491. Then a court Del Mar court concept by the core destroyed recognizing whether the would this decide “hearing helpful nonspoliating party’s judiciary of the include have been the functions by the Importantly, spoliating deciding the of fact raised case defense. issues attempt deciding questions party pleadings, [and] is still free to show College, 831 destroyed irrele- Kutch v. Mar evidence was law....” Del 506, Christi prejudice (Tex.App —Corpus that no from its 510 vant and resulted S.W.2d . Jameson, writ); Dowling, 862 no see destruction. See Brewer v. also Greiner

959 Mach., (Tex.App. 865 (Tex.App. S.W.2d 498-99 S.W.2d — Dallas — San denied). poten writ). writ destruction of any Antonio As with other tially clearly relevant evidence inhibits sanction, type of the trial court’s sanction ability courts’ to hear evidence and accurate against wrongdoer must be directed ly determine the facts. without the properly remedy prejudice. tailored to power protect against inherent TransAmerican, at See 811 S.W.2d 917. destruction, prevented courts would be from spo- The most severe sanction for evidence hearing relevant evidence and would be un proper able to ensure the administration of liation is to dismiss the action or render a justice.2 TransAmerican, judgment. default See 917-18; at Ramirez v. Otis Elevator Spoliation 2. Sanctions For of Evidence Co., (Tex.App 837 S.W.2d . —Dal Once a court denied). finds that evidence has been considering las writ this improperly spoliated nonspoliat- and that the sanction, courts must be sensitive to certain ing party prejudiced by spoliation, was process constitutional due considerations and the court should decide what sanction to depriving avoid right of the to have apply. Trial courts have broad discretion its ease heard on the merits. See Societe choosing appropriate sanction. See Participations Internationale Pour Industr Corp. TransAmerican Natural Gas v. Pow Commerciales, Rogers, ielles et S.A. ell, (Tex.1991). 811 S.W.2d There 197, 209-10, U.S. 78 S.Ct. 2 L.Ed.2d are a wide available. See Scott S. (1958); TransAmerican, 811 S.W.2d at Muscaro, Katz & Anne Marie Spoilage of However, 917-18. courts have found that a Crimes, Sanctions, Inferences, Evidence — justified judgment dismissal default Torts, (1993); 29 Tort & Ins. L.J. 51 party destroys when a evidence with the Cambre, Kelly Comment, P. Spoliation of discovery. Computer intent to subvert Proposed Evidence: Remedies the De for Int'l, Inc., Assocs. 133 F.R.D. at Wm. struction Evidence in Louisiana Civil Lit Thompson F.Supp. T. at 1456. Loy. igation, 39 Among L.Rev. Thus, courts can an action dismiss or render issue, other courts that have considered this spoliator’s default when the con- primary sanctions are dismissal or de egregious, prejudice duct was to the judgment against fault spoliator and ex nonspoliating party great, imposing was clusion of testimony. evidence or a lesser sanction would be ineffective cure Because of varying degrees of sanc- TransAmerican, prejudice. tions available and pres- because each case Ramirez, 917-18; S.W.2d at 837 S.W.2d at unique circumstances, ents a set of courts 410-11; Remington see also Arms Co. apply sanctions on a case case Caldwell, 167, 171(Tex.1993); see Schmid, 81; Welsh, basis. See at F.3d Hockey also League National v. Metro. Important 844 F.2d at 1247. factors for the Club, Inc., 639, 640, Hockey 427 U.S. 96 S.Ct. weigh trial court degree include the (1976); Pressey, 49 L.Ed.2d 747 spoliator’s culpability prejudice and the See, Thompson at T. nonspoliator Schmid, F.2d Wm. e.g., suffers. 79; Welsh, Capellupo, F.3d at 844 F.2d at also 126 F.R.D. at Press, 552; Hirsch, San Antonio Inc. v. Custom Bilt 628 A.2d jurisdictions power parties 2. Most other also courts’ the inherent to sanction who are at power inherent to sanction for the de- destroying prelitigation). fault in Sacramona, struction of evidence. (recognizing F.3d at 446 that courts have the 3. Some courts have held that when a trial court authority spoliat- inherent sanction party destroyed determines that a evidence in prevent prejudice nonspoli- evidence to faith, bad anis abuse of discretion not to either Dillon, ating parly); (holding sanction or submit a instruc power that parties have the courts inherent to sanction Org., tion. See Alexander v. National Farmers destroying prelitigation (8th Cir.1989); Battoc knew or should have known was rele- chi, A.2d at 767. Ins., litigation); Unigard vant to imminent (noting 982 F.2d at 368 & n. 2 jury that excluding instructing spoliating Another effective sanction is evi the the or generally intentionally de- testimony. dence or Courts use either and, therefore, stroyed jury the spoliating party is evidence this sanction when the presume destroyed that the evidence attempting testimony admit evidence See, spoliating party on destroyed from was unfavorable adduced the evidence. Sacramona., 444; Dillon, particular destroyed at the fact issue the e.g., Next, supported. 263; might have the Unigard F.2d at Ins. evidence Exch., 363; 911; jury spoli- court the should instruct that the F.2d at Fire Ins. P.2d at 783; Hamann, disprove ating party the the Chapman, 469 at bears burden S.E.2d Welsh, situations, presumed fact or issue. See nonspo- 753. In N.W.2d these the Valcin, Sweet, 491-92; 1247; at 895 P.2d at liating party disadvantage. is at a double v. Montgomery at Lane Ele- only nonspoliating party precluded is the So.2d Not evidence, Ga.App. using vator 484 S.E.2d from the but evidence ad spoli- means the destroyed being from the This that when duced is ating pre- rebutting offers evidence the against party. Understandably, used that it issue, the nonspoliat- presumption for the sumed fact or does extremely will be difficult disappear. automatically It is not over- ing party against spoliating the defend come the fact finder party’s allegations being in until believes without able to Thus, instances, by presumed fact has been whatev- spect the in some overcome evidence. degree persuasion law proper spoliat- exclude er of the substantive courts to the Sweet, requires. See 895 P.2d at party’s case ing evidence. 600-01). Valcin, (quoting at So.2d Spoliation Presumption C. proof the shifting In the burden of sanctions, choosing party, addition Texas courts have trial spoliating courts instructing juries. broad discretion in See “condones the ground middle that neither Bell, [nonspoliat- P. Mobil Chem. Co. ... of evidence at Tex.R. Civ. (Tex.1975). unduly imposes when ing party’s] expense 517 S.W.2d nor evidence, destroys liability” spoliat- improperly upon harsh absolute Welsh, spoliation presumption submit a 1249. More- 844 F.2d at party. over, proof, instruction. Elec. by shifting Watson Brazos the burden (Tex. Coop., support nonspoliating Power presumption 918 S.W.2d 639 will denied).4 Deciding App. party’s writ and is assertions some — Waco legal particular whether to submit this instruction is a the de- issue or issues earlier, stroyed might supported. the trial The determination. As stated that there nons- presumption court should first find was a will enable the rebuttable summary judg- spoliating party poliating party to survive ment, verdict, duty, prej breached not with- directed verdict, party. legal nonspoliating udiced the and factual and standing the Lane, appeal. sufficiency review on See Depending severity prejudice S.E.2d at 251. resulting particular from the evidence de- less presumption is stroyed, type The the trial court can submit one of two second Welsh, presumption merely severe. an adverse types presumptions. See It is unfavora The would have been presump- at 1239. first and more severe the evidence party. H.E. Butt spoliating presumption. tion is a rebuttable This is Bruner, 340, 344 party Grocery primarily nonspoliating used Co. v. when by (Tex.Civ.App. writ dism’d prove prima cannot its facie ease without the — Waco Vodusek, Welsh, also, destroyed agr.); F.3d evidence. See Hirsch, 1248; Sweet, 491; Valcin, DeLaughter, 601 P.2d at So.2d presumption itself has 1126. The begin at 599. trial court should A.2d at So.2d Watson, Notably, appeals properly raised the issue. in Watson held had court refusing the trial erred in court to submit at 643. nonspoliating instruction when probative sup- value ga be sufficient to has other available As I have remedies. port nonspoliating party’s explained, Ortega assertions. can move for sanctions or Bruner, However, request spoliation presumption in the un- nonspoliating party malpractice does not relieve the action. If he derlying shows prove the burden to each element of its case. that Dr. Trevio had a evi- dence, DeLaughter, duty, So.2d 822. There- Dr. Trevio violated that and the fore, simply it is prejudiced Ortega’s ability another factor used suit, weighing factfinder in bring remedy the evidence. the trial court can

III. CONCLUSION creating action,

Without a new cause of

there are still a of remedies available punish spoliators, spoliators, deter future protect nonspoliators prejudiced by evi-

dence destruction. while the Court action,

declines to a cause of Orte-

Case Details

Case Name: Trevino v. Ortega

Court Name: Texas Supreme Court

Date Published: Jul 3, 1998

Citation: 969 S.W.2d 950

Docket Number: 97-0280

Court Abbreviation: Tex.